American Democracy in Context. Joseph A. Pika
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right of privacy is especially contentious because it often involves highly controversial practices such as birth control, abortion, and consensual sex among adults as well as the right to die.
Unlike the U.S. Constitution’s unenumerated right of privacy, the European Convention on Human Rights contains a specifically enumerated right of privacy, with Article 8, Section 1 stating, “Everyone has the right to respect for his private and family life, his home and his correspondence.” Section 2, though, allows governments to restrict this right of privacy when that restriction is “in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Natural Rights Tradition
The United States has a long natural rights tradition. Natural rights are those basic, fundamental rights that all human beings are entitled to, whether the government recognizes them or not. The English philosopher John Locke identified life, liberty, and property as the quintessential natural rights. Thomas Jefferson borrowed from Locke when he wrote the Declaration of Independence. Some of those who opposed the addition of a Bill of Rights to the Constitution were afraid that an enumeration of rights would suggest that no unenumerated rights existed. Thus, the Bill of Rights ended up including the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Some people see this as a textual justification for the Supreme Court to recognize and enforce unenumerated rights. Others argue that the Ninth Amendment was only meant to allow states to go further in recognizing rights than the federal government: Lack of an enumerated right in the Constitution did not mean that it could not be recognized by a state.
natural rights Basic rights that all human beings are entitled to, whether or not they are formally recognized by the government.
Still others have asked a more fundamental question: Do natural rights exist at all? Even if they do, should a simple majority of the Supreme Court be entrusted with discovering them? To do so might open the door to judicial policy making. For example, in the early part of the twentieth century, a majority of the Supreme Court read economic rights into the Constitution and used them to strike down government regulations of business such as minimum wage laws, maximum hour laws, and child labor laws. Since 1937, when the Supreme Court overturned that line of decisions, the majority of the Court has viewed the decisions in those cases as misguided—an attempt by the Court majority to impose its policy judgments on everyone else.
Ultimately your enthusiasm (or disdain) for reading rights into the Constitution and then using them to strike down legislation may depend upon what you think about the legislation in question. If you like the legislation that is struck down, it is easy to accuse the Court of unjustifiable judicial activism. If you don’t like the law, it is easy to praise the Court for vindicating natural rights.
Discovering the Right of Privacy
The Supreme Court first established a constitutional right of privacy in Griswold v. Connecticut (1965).94 By a 7–2 vote, the Supreme Court struck down a Connecticut law that made it a crime for anyone, including married couples, to use any form of birth control. In his opinion for the Court, Justice Douglas argued that this law violated the right of privacy of married couples (it took a future case to extend this constitutional protection to unmarried couples).95
Where did this right of privacy come from? Douglas argued that it was implied by specific language in the Bill of Rights. He noted that the First Amendment’s guarantee of free speech and assembly protects the freedom to associate and implies a right of privacy in one’s associations. The Third Amendment’s prohibition against quartering soldiers in any house in time of peace without the permission of the owner suggests a zone of privacy against government intrusion. So, too, does the Fourth Amendment’s ban on unreasonable searches and seizures and the Fifth Amendment’s ban on self-incrimination. The Ninth Amendment clearly states that the failure to enumerate a specific right does not mean that it does not exist. Finally, the Fourteenth Amendment allows for fundamental rights to be incorporated. Taken together, Douglas argued that these specific provisions imply a zone of privacy broad enough to protect the marital bedroom from government intrusion and fundamental enough to apply to the state of Connecticut.
Not all the justices agreed with Douglas. Some thought the right of privacy was even more expansive than Douglas admitted, but signed on to his decision. Others strongly rejected any right of privacy. Hugo Black dissented even though he admitted that the Connecticut law was “every bit as offensive to me as it is to my Brethren of the majority.”96 But Black was a literalist, and he looked in vain for a specific constitutional clause that the law violated. “I like my privacy as well as the next one,” Black wrote, “but I am nonetheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”97
Abortion
Griswold v. Connecticut paved the way for Roe v. Wade in 1973.98 Roe is one of the most famous and one of the most controversial of all Supreme Court decisions. It involved a Texas law that criminalized abortions. Was that law constitutional? By a 7–2 vote, the Supreme Court said no. But in so doing, it tried to balance two competing constitutional rights: the privacy right of a woman to control her own body versus the state’s interest in protecting the life of the fetus.
Justice Harry Blackmun’s majority opinion assumed that the right of privacy is fundamental and that any law interfering with that right triggers strict scrutiny. (For a more complete discussion of the strict scrutiny test, see Chapter 14.) Since the Texas antiabortion law interfered with a woman’s right of privacy, the state of Texas had to demonstrate that it had a compelling reason to restrict that privacy right. The state claimed to have two compelling reasons: (1) protecting the health of the mother and (2) protecting the life of the fetus.
Blackmun assessed these claims in the light of medical technology as it existed in 1973. He relied on statistics showing that the abortion procedure was actually safer than childbirth until the end of the first trimester of pregnancy (each trimester represents three months of a pregnancy). Therefore, he concluded that the state did not have a compelling interest in regulating abortion procedures on safety grounds prior to that first “compelling point”—the end of the first trimester. However, he said that states did have a compelling interest in passing laws that regulated the abortion procedure in order to protect maternal health from that point forward.
Blackmun then asked, When does a state have a compelling interest in protecting the life of the fetus? At one extreme are those who argue that states have a compelling interest in doing so from the point of conception. Those at the other extreme argue that states do not have a compelling interest until childbirth because a fetus is not a person until then. Blackmun sought a compromise. When he was writing in 1973, a fetus could not survive outside of the mother’s womb until the end of the second trimester, known as the point of viability. Using that as his second compelling point, Blackmun concluded that states have a compelling interest to regulate (and to ban completely, if they so choose) abortions in the last trimester.
This so-called trimester framework gave a woman’s privacy right priority in the first three months of pregnancy but gave the state’s interest in protecting life priority in the last three months of pregnancy. In the second trimester, states could regulate abortions in order to protect maternal health but could not ban the procedure altogether. In contrast, the two dissenters argued that laws banning abortions are a reasonable exercise of state police powers.
Like any middle ground position, the trimester framework came under attack from both sides. As time went by, advances in medical technology also eroded it. The first compelling point moved closer toward childbirth, while the second compelling point moved closer to conception. In other words, late-term abortions became